Even your favorite President, the best, coolest one, can’t override the Constitution with an executive amendment. That’s how the Constitution is built, how the Supreme Court has ruled (in Youngstown v. Sawyer etc), and how America was designed from the start.
I’ve been thinking about executive orders, Constitutional amendments, Presidential power and how they interrelate this morning. Bottom line: the Constitution is the highest legal authority in the US, and all three branches of government are bound to its rules.
I think of the Constitution as designed as a sort of snapshot (or painting, considering when it was written) of a perfect America - one document describing the perfect society. That’s what the framers thought they were doing when they wrote it.
(Of course, our great-great-great-etc-grandparents defined “a perfect America” differently than we do now, and that’s why the Constitution has amendments built right into it. It’s designed to change as America does.)
The Constitution gives each branch of government specific abilities, including power to keep the other two in check. It’s like Batman’s little piece of kryptonite in his utility belt in case Superman goes crazy, Wonder Woman’s magic lasso, and Superman’s, er, everything.
The executive order power comes from Article II of the Constitution. It’s a catch all that lets the President do things to enforce the law, or say how the resources of the executive branch should be used. It’s super loose, and some Presidents have taken that and run with it.
But because Presidents are not monarchs and are not *supposed* to be allowed to do whatever they want (again, that’s the Constitution saying that, the way America was built from day 1), there are limits on what executive orders can do.
The biggest limit on executive orders (your mileage may vary, Constitutional scholars out there) is that they can’t violate the Constitution. The Constitution, if you will, trumps the President.
The idea of “you can’t just toss out the Constitution when you feel like it even if you are the President” was locked in by a Supreme Court decision in 1952 - Youngstown Sheet & Tube v. Sawyer.
Youngstown was about unions, and President Truman’s attempt to take over (by having the federal government run) a bunch of private steel mills to ensure continued steel production during the Korean War.
If you’re interested, the case and its opinions, etc. are here: supreme.justia.com/cases/federal/… and a detailed writeup is here: constitutioncenter.org/blog/youngstow…
But I’ll summarize. After all, this is Twitter.
But I’ll summarize. After all, this is Twitter.
In Youngstown, the Supreme Court said the President can’t do things that violate the Constitution. Period. If the Constitution says something, the Prez can’t do the opposite. The Constitution has to be changed first, via an amendment.
Constitutional amendments are crazy hard to achieve, and that’s by design. The folks who wrote the Constitution didn’t want it to change unless America - a LOT of America - wanted it to change.
The Constitution can be amended by a two-thirds vote of both the House and the Senate, or via a “Constutional Convention” called by a majority of the state congresses, which have their own complex procedures. Changing the Constitution is hard. On purpose.
Considering that Congress is so divided right now, and major decisions (especially in the Senate) land on party lines, it’s hard to see anything at all getting 2/3 support, especially a Constitutional amendment.
Here’s a more detailed writeup on the amendment process from the National Archives itself: archives.gov/federal-regist…
But here’s the thing - the limits on executive orders I talked about above are unevenly applied sometimes. For example, FDR did things during WW2 sort of like what Truman got dinged for, but since he was super popular he (more or less) got away with it.
A sympathetic Congress or Supreme Court can also help a President do things via executive order that would otherwise never be allowed.
That said, I think an executive order that flies in the face of something *explicitly guaranteed by the Constitution* - not just implied, but outright stated, like free speech or citizenship by birth or two Presidential terms or women’s/minorities’ right to vote - would not fly.
The tricky thing, though, is that the wheels turn slowly - an executive order could be issued, and then it could take a while for the Supreme Court to strike it down, during which time the E.O. Is in effect. (Sort of. There are ways to accelerate things, but still...)
That’s especially true if the Executive Branch decides to argue that whatever the President’s done doesn’t actually violate the Constitution, which would be, like, a super technical legal argument worthy of Daredevil or Jennifer Walters.
But anyway, interesting times as always in our great land. I apologize for such a long thread - I was working out my own thoughts on the issues of the day via Twitter. If you’ve stuck with me this long, congrats. You’re the hero we deserve.
Oh, also, disclaimer - I’ve been an attorney for coming up on twenty years (oof) specialized primarily in immigration issues. I’m not a Constitution expert, although I find it all really fascinating and, y’know, do my homework. Enjoy the day.
